United States District Court, D. Nevada
C. JONES UNITED STATES DISTRICT JUDGE
case arises out of a homeowners' association foreclosure
sale. Pending before the Court are counter motions for
FACTS AND PROCEDURAL HISTORY
Irma Mendez, a California resident, purchased an investment
property in North Las Vegas, Nevada (“the
Property”) for $315, 000, giving the lender a
promissory note for $252, 792 and an attendant deed of trust
(“the DOT”) against the Property. Alessi &
Koenig, LLC (“A&K”), on behalf of Fiesta Del
Notre Homeowners Association (“the HOA”), sold
the Property to Absolute Business Solutions, Inc.
(“ABS”) under Nevada Revised Statutes
(“NRS”) Chapter 116.
sued A&K, the HOA, Complete Association Management Co.,
LLC (“CAMCO”), ABS, and Amir Hujjuttallah in
diversity in this Court in pro se on eight causes of
action: (1) wrongful foreclosure; (2) violations of
constitutional rights; (3) Nevada Unfair Trade Practices Act
(“NUTPA”); (4) Fair Debt Collection Practices Act
(“FDCPA”); (5) Fraud; (6) Unjust Enrichment; (7)
Racketeering; and (8) Breach of Contract and Fiduciary
Duties. CAMCO moved to dismiss for failure to state a claim,
and the HOA and A&K joined the motion. ABS and
Hujjuttallah separately moved to dismiss under Brillhart
v. Excess Insurance Co., 316 U.S. 491 (1942), and the
HOA joined the motion. The Court denied the second motion but
granted the first motion in part, with leave to amend in
part. Specifically, the Court dismissed the claims for unjust
enrichment, racketeering, breach of fiduciary duty, and the
claims under NRS sections 598.0915(1) and (15), 42 U.S.C.
§ 1983, and 15 U.S.C. §§ 1692f(6), 1692g(c),
1692i(b), and 1692k, without leave to amend. The Court
dismissed the claim for fraud and the claims under 15 U.S.C.
§§ 1692d, 1692e, and 1692j(a), with leave to amend.
The Court refused to dismiss the claims for wrongful
foreclosure and breach of contract and the claims under NRS
section 598A.060(1)(12) and 15 U.S.C. § 1692f(1).
filed the First Amended Complaint (“FAC”),
listing five causes of action: (1) wrongful foreclosure; (2)
NUTPA; (3) FDCPA; (4) Fraud; and (5) Breach of Contract.
CAMCO filed two motions to dismiss the FAC, and the HOA
joined the first motion. A&K filed a separate motion to
dismiss, which the HOA joined. The Court denied the motions
as against the wrongful foreclosure claim, based on
Plaintiff's allegations that Defendants wrongfully
rejected her attempt to redeem the default before the
foreclosure sale. The Court denied the motions as against the
claim of bid rigging under NRS section 598A.060(1)(a)(12),
based on Plaintiff's allegation that the foreclosure sale
occurred in the private offices of the auctioneer for
approximately 10% of the Property's fair market value.
Plaintiff also alleged violations of 15 U.S.C. §§
1692d, 1692f, and 1692g. The Court dismissed the claims under
§§ 1692d and 1692g and dismissed the § 1692f
claim as against CAMCO but not as against the HOA or A&K.
The Court dismissed the fraud claim. Finally, the Court
permitted the breach of contract claim to proceed as against
the HOA, based on Plaintiff's allegations that the HOA
failed to obtain the consent of two thirds of unit owners in
the HOA before pursuing foreclosure as required by the
Covenants, Conditions and Restrictions (“the
Court granted a motion to amend the FAC in part, and
Plaintiff filed the Second Amended Complaint
(“SAC”), listing four causes of action: (1)
wrongful foreclosure (the HOA, CAMCO, A&K, Absolute
Collection Services, LLC (“ACS”)); (2) NUTPA bid
rigging (A&K, Kendrall Williams, ABS, Hujjutallah); (3)
FDCPA § 1692f (the HOA, A&K); and (4) Breach of
Contract (the HOA). Plaintiff moved for offensive summary
judgment on the FDCPA claim, and the HOA moved for defensive
summary judgment against that claim. Three groups of
Defendants and “indispensable parties” (as named
in the SAC) separately moved to dismiss. The Court dismissed
Williams, the Jimijack Irrevocable Trust, Joel and Sandra
Stokes, and ACS from the action and granted summary judgment
to the HOA against the FDCPA claim.
summary, the remaining claims are: (1) wrongful foreclosure
(the HOA, CAMCO, A&K); (2) NUTPA bid rigging (A&K,
ABS, Hujjutallah); (3) FDCPA § 1692f (A&K); and (4)
Breach of Contract (the HOA). A&K has filed for bankruptcy
protection, so the action is presumably stayed as against
A&K. The HOA and CAMCO have moved for defensive summary
judgment against the wrongful foreclosure and breach of
contract claims. Plaintiff has filed a countermotion for
offensive summary judgment.
SUMMARY JUDGMENT STANDARDS
must grant summary judgment when “the movant shows that
there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.”
Fed.R.Civ.P. 56(a). Material facts are those which may affect
the outcome of the case. See Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248 (1986). A dispute as to a
material fact is genuine if there is sufficient evidence for
a reasonable jury to return a verdict for the nonmoving
party. See Id. A principal purpose of summary
judgment is “to isolate and dispose of factually
unsupported claims.” Celotex Corp. v. Catrett,
477 U.S. 317, 323-24 (1986).
determining summary judgment, a court uses a burden-shifting
scheme. The moving party must first satisfy its initial
burden. “When the party moving for summary judgment
would bear the burden of proof at trial, it must come forward
with evidence which would entitle it to a directed verdict if
the evidence went uncontroverted at trial.” C.A.R.
Transp. Brokerage Co. v. Darden Rests., Inc., 213 F.3d
474, 480 (9th Cir. 2000) (citation and internal quotation
marks omitted). In contrast, when the nonmoving party bears
the burden of proving the claim or defense, the moving party
can meet its burden in two ways: (1) by presenting evidence
to negate an essential element of the nonmoving party's
case; or (2) by demonstrating that the nonmoving party failed
to make a showing sufficient to establish an element
essential to that party's case on which that party will
bear the burden of proof at trial. See Celotex
Corp., 477 U.S. at 323-24.
moving party fails to meet its initial burden, summary
judgment must be denied and the court need not consider the
nonmoving party's evidence. See Adickes v. S.H. Kress
& Co., 398 U.S. 144 (1970). If the moving party
meets its initial burden, the burden then shifts to the
opposing party to establish a genuine issue of material fact.
See Matsushita Elec. Indus. Co. v. Zenith Radio
Corp., 475 U.S. 574, 586 (1986). To establish the
existence of a factual dispute, the opposing party need not
establish a material issue of fact conclusively in its favor.
It is sufficient that “the claimed factual dispute be
shown to require a jury or judge to resolve the parties'
differing versions of the truth at trial.” T.W.
Elec. Serv., Inc. v. Pac. Elec. Contractors Ass'n,
809 F.2d 626, 631 (9th Cir. 1987). In other words, the
nonmoving party cannot avoid summary judgment by relying
solely on conclusory allegations unsupported by facts.
See Taylor v. List, 880 F.2d 1040, 1045 (9th Cir.
1989). Instead, the opposition must go beyond the assertions
and allegations of the pleadings and set forth specific facts
by producing competent evidence that shows a genuine issue
for trial. See Fed. R. Civ. P. 56(e); Celotex
Corp., 477 U.S. at 324.
summary judgment stage, a court's function is not to
weigh the evidence and determine the truth, but to determine
whether there is a genuine issue for trial. See
Anderson, 477 U.S. at 249. The evidence of the nonmovant
is “to be believed, and all justifiable inferences are
to be drawn in his favor.” Id. at 255. But if
the evidence of the nonmoving party is merely colorable or is
not significantly probative, summary judgment may be granted.
See Id. at 249-50. Notably, facts are only viewed in
the light most favorable to the nonmoving party where there
is a genuine dispute about those facts. Scott v.
Harris, 550 U.S. 372, 380 (2007). That is, even if the
underlying claim contains a reasonableness test, where a
party's evidence is so clearly contradicted by the record
as a whole that no reasonable jury could believe it, “a
court should not adopt that version of the facts for purposes
of ruling on a motion for summary judgment.”